Massachusetts Superior Court Case Summaries: September 26, 2005

Massachusetts Lawyers Weekly
September 26, 2005


Forum non conveniens - Sexual abuse

Where a complaint has been filed against the defendant Roman Catholic Archdiocese of Albany by a plaintiff who allegedly was molested by a codefendant monsignor who died in 1983, a motion by the defendants to dismiss the complaint should be denied because Massachusetts is not an improper venue and the doctrine of forum non conveniens is inapplicable.

"Here, because the New York statute of limitations has run, an adequate alternative forum is not available. A dismissal of the present action on grounds of forum non conveniens, absent defendants' waiver of the New York statute of limitations, is therefore inappropriate.

"While this Court thus denies the partial motion to dismiss for forum non conveniens, it notes that choice of law analysis may still require that the New York statute of limitations be applied to some or all of plaintiff's claims. ... However, I defer determining which statute of limitations should apply to the multiple occurrences of abuse that occurred in New York and Massachusetts at this time. ...

"Here, the action is personal in nature and could have occurred in multiple locations within the Commonwealth. Indeed, the complaint clearly alleges that incidents of abuse occurred in several different areas within the Commonwealth over a span of more than five years. Further, neither party lives in the Commonwealth. As a result, [plaintiff Edmund] Zampier committed no error by choosing to file the action in Suffolk County. ...

"The defendants assert that the claims against Monsignor [William M.] Slavin must be dismissed because the claims were not brought within one year of his 1983 death, as required by G.L.c. 197, Sect. 9. General Law chapter 197, section 9, however, applies only to claims brought by creditors. It thus does not apply to the tort claims brought by plaintiff.

"Instead, G.L.c. 230, Sect. 1 governs the instant case. That provision establishes that '[a]n action which would have survived if commenced by or against the original party in his lifetime may be commenced and prosecuted by or against his executor or administrator. ' As a result, the claims against Monsignor Slavin have been properly brought.

"The defendants also contend that because Monsignor Slavin is deceased, the complaint was not and could not have been properly served upon him. The plaintiff, however, has submitted an affidavit of service to this Court, which clearly indicates that the summons and complaint were served upon a person authorized to accept service on behalf of Monsignor Slavin. The defendants do not contest that the person identified in the affidavit had the authority to accept service on behalf of Monsignor Slavin. As a result, this Court finds that the service was sufficient. "

Zampier v. Hubbard, et al. (Lawyers Weekly No. 12-280-05) (7 pages) (Macdonald, J.) (Suffolk Superior Court) (Civil Action No. 04-5172-E) (Aug. 31, 2005).


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